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When Open Courts Meet Closed Government David M The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference Volume 29 (2005) Article 18 When Open Courts Meet Closed Government David M. Paciocco Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/sclr This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Paciocco, David M.. "When Open Courts Meet Closed Government." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 29. (2005). http://digitalcommons.osgoode.yorku.ca/sclr/vol29/iss1/18 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in The uS preme Court Law Review: Osgoode’s Annual Constitutional Cases Conference by an authorized editor of Osgoode Digital Commons. When Open Courts Meet Closed Government David M. Paciocco* I have long been aware at an intellectual level of the importance of the “open court” principle. I did not fully appreciate that importance, though, until I witnessed the President of the Appeals Chamber of the International Criminal Tribunal for Rwanda order that a hearing I was counsel at would go into “closed session.”1 I was about to cross- examine an expert witness who had testified for the Prosecution at the trial about a missive he had sent to the Prosecutor after the trial was over claiming that our client was not at the location of a massacre for which he was convicted. When the President made his order the microphones in the sound-proof, glass-walled visitor’s gallery were turned off. Then automatic blinds were inched closed to the sound of a grating motor, blocking the view into the courtroom from the gallery, presumably so that no one could read the expert’s lips while looking at the back of his head (which is all their vantage point allowed). What then transpired was to be “closed” from the world forever. What amazed me about this development was that the Prosecutor had not even asked for the hearing to move into closed session. The witness requested it. All he had to say in order for the President to shut the public out and forever seal what was about to transpire was that he was concerned for the safety of some of the witnesses he had spoken to, should their names become public. No evidential foundation for his fear was presented or asked for, and no canvass was undertaken for less intrusive ways to protect those witnesses, if they indeed needed protec- tion.2 The President did not even invite submissions before making the * Common Law Section, University of Ottawa; Of Counsel ― Edelson and Associates. 1 The case is Prosecutor v. Georges Rutaganda. The final appeal decision (The Prosecu- tor v. Georges Rutaganda, Case No. ICTR-96-3-A, 26 May 2003), and the decision on this fresh evidence motion (Decision on Consolidated Defence Motion, 3 January 2003) can be found online at <www.ictr.org> (last accessed 27 June 2005). 2 Such as leaving the hearing open but assigning the witnesses pseudonyms, or having the expert write out their names and hand them up to the Tribunal when their identifications were being canvassed. 386 Supreme Court Law Review (2005), 29 S.C.L.R. (2d) order. We simply continued in a closed proceeding in which issues central to the liberty of my client would be determined away from the eyes of the world. The irony that a Tribunal, created to enable the eyes of the world to witness justice, would so reflexively go into “closed session” was not lost on me. Nor did I fail to see the long-term risks of such practices to the integrity of the justice the Tribunal was dispensing. As a Canadian lawyer I dismissed this attitude about the open court principle as yet one more product of the cultural gap between Canadian conceptions of jus- tice and those that apply internationally. Canadian justice system partic- ipants3 would never be so cavalier about the open court principle, I thought. I am beginning to fear that maybe I was wrong. I. INTRODUCTION The law, of course, largely controls the degree to which the open court principle is respected. “Legal culture,”4 however, has as much to do with the fortunes of the “open court principle” as does the law. The law often provides only standards — not clear answers. The extent to which the open court principle is respected therefore comes down to attitude or the commitment to it among justice system participants. The point is worth making, indeed stressing, now that our legal culture is experiencing the stress of national insecurity brought on by the terrorist attacks of 2001. We are fortunate that this is a country with a long and demonstrated commitment to the open court principle.5 But attitudes have changed since that commitment rooted. With the notable exception of a decade of war in the first half of the 20th century and the October crises of 1970, our fidelity to the open court principle was nurtured in a stable democracy, in 3 The term “justice system participants” is a term of art in the Criminal Code of Canada, R.S.C. 1985, c. C-46, defined in s. 2, and includes Parliamentarians, members of the executive, prosecutors, lawyers and peace officers. 4 I cannot rely as heavily as I do on the term, “legal culture,” without explaining what I mean by it. I use the term to define a community’s attitudes about the imposition and application of law, both as reflected in the legal system’s own rules, principles and policies, and by the views and priorities of those who administer the law. 5 See P.B. Shabas, “Media Freedom under the Charter,” Law Society of Canada Special Lectures 2001, Constitutional and Administrative Law (Toronto: Law Society of Upper Canada, 2002), at 441 for a description of the common law tradition of respect for the principle, and its transition to a constitutionally protected ideal. (2005), 29 S.C.L.R. (2d) When Open Courts Meet Closed Government 387 peaceful times. The terrorist attacks of 2001 have ushered in a height- ened sense of purpose and secrecy on the part of government, and the intelligence and law enforcement communities, all in the interests of that profoundly powerful goal of “national security.” National security can indeed be compromised by the flow of information, and no respon- sible Canadian would expect legal doctrine to require the disclosure of information that would endanger Canada or impair the ability of the government to protect its citizens. National security is being invoked, however, with increasing frequency. It is being used to shut down public access to information that is being relied upon to make serious decisions about the liberty of individuals — about whether to execute warrants, including warrants against journalists;6 about whether “public inquiries” into important issues relating to the activities of our national security apparatus should really be public inquiries;7 about whether to detain people in immigration lock-ups and deport them;8 about whether to list people or groups as terrorist entities;9 about whether to seal search war- rants;10 about whether to resist disclosure; about whether to permit de- fendants to use evidence they have acquired;11 and about charging individuals with terrorist offences. The attitude that gives priority to national security concerns chal- lenges the open court principle in criminal cases. While it is to be ex- pected, it is worrisome because it is precisely in times of national insecurity that the open court principle takes on special urgency. After all, one of the roles of the open court principle is to ensure that individuals brought before the courts for prosecution are being treated fairly; the 6 The R.C.M.P. executed warrants in January of 2004 at the offices of the Ottawa Citizen Group Inc., and at the residence of journalist Juliett O’Neill. The warrant documents were sealed, in the interests of national security, leading to protracted litigation to unseal them. See Canada (Attorney General) v. O’Neill, [2004] O.J. No. 4649, 192 C.C.C. (3d) 255 (S.C.J.). 7 Commission of Inquiry Into the Actions of Canadian Officials in Relation to Maher Arar, The Hon. Dennis R. O’Connor, Commissioner [hereinafter “Arar Inquiry”]. 8 See, e.g., proceedings against Mohammed Harkat, chronicled in “Mohamed Harket ― A Security Certificate Case, 25 For the Defence: Criminal Lawyer’s Association Newsletter, No. 6, 44. 9 Liban Hussein, an Ottawa member of the Somali community, was placed on a terrorist list established under the authority of the United Nations Act, but was subsequently de-listed. 10 A considerable but unknown number of search warrants have been executed and sealed, including one against Ottawa resident, Abdullah Amalki, “Judge Won’t Reverse Ruling on Unseal- ing Amalki Files,” The Ottawa Citizen (11 January 2005) A14. 11 See Canada (Attorney General) v. Ribic, [2003] F.C.J. No. 1964, 185 C.C.C. (3d) 129 (C.A.), leave to appeal refused (22 October 2003) (S.C.C.). 388 Supreme Court Law Review (2005), 29 S.C.L.R. (2d) American experience with its overlay of abuse sheltering in a regimen of military trials and secret processes shows the heightened need for transparency if individual rights are to be respected when a government feels most threatened. The situation is decidedly less intense in Canada, but the point is made; “History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extrava- gant to endure.”12 The other role of the open court principle is to secure democracy, yet, as has also been observed, “the powers necessary to defeat terrorism and suppress insurrection [including state control on the flow of infor- mation] are the very ones needed to enforce a tyranny.”13 I do not want to be histrionic about this.
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